"The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it"
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Frankfurter’s line is a judicial slap on the wrist, aimed as much at the Supreme Court as at everyone who treats its opinions like scripture. By calling the Constitution the “ultimate touchstone,” he insists on a hierarchy: the text sits above the Court’s commentary, and precedent is supposed to be a tool, not a substitute. The phrasing is deceptively modest. “What we have said about it” sounds humble, even self-effacing, but it carries a sharp warning: judges can mistake their own interpretations for the thing interpreted, turning constitutional law into a hall of mirrors where yesterday’s rhetoric governs more than the document itself.
The subtext is a fight over judicial legitimacy. Mid-20th-century constitutional battles forced the Court into the role of national umpire on labor, civil liberties, New Deal governance, and later civil rights. In that climate, the Court’s words could harden into authority with a life of their own. Frankfurter, often associated with judicial restraint, is trying to keep the institution from becoming a quasi-legislature by citation. He’s also speaking to lawyers who weaponize precedent: if you can win by stacking quotes from opinions, you can avoid the harder question of whether the Constitution, read honestly, bears the weight you’re putting on it.
It works because it sounds like a truism while undermining the Court’s vanity. The Court is necessary, Frankfurter implies, but not infallible; its best discipline is remembering that it is interpreting a charter, not writing one.
The subtext is a fight over judicial legitimacy. Mid-20th-century constitutional battles forced the Court into the role of national umpire on labor, civil liberties, New Deal governance, and later civil rights. In that climate, the Court’s words could harden into authority with a life of their own. Frankfurter, often associated with judicial restraint, is trying to keep the institution from becoming a quasi-legislature by citation. He’s also speaking to lawyers who weaponize precedent: if you can win by stacking quotes from opinions, you can avoid the harder question of whether the Constitution, read honestly, bears the weight you’re putting on it.
It works because it sounds like a truism while undermining the Court’s vanity. The Court is necessary, Frankfurter implies, but not infallible; its best discipline is remembering that it is interpreting a charter, not writing one.
Quote Details
| Topic | Justice |
|---|---|
| Source | Help us find the source |
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